Heard Sri P.N. Dwivedi and Sri Shiva Kant Tiwari the learned counsel for the applicant and Sri R.K. Chaudhary the learned counsel for the opposite party and perused the record.
Before adverting to the controversy involved in the present case, I think it is appropriate to state the fact that the Constitution of India is very comprehensive and has provided checks and balances in almost every matter and Entry 14 of the List-III Concurrent List of the Seventh Schedule of the Constitution is as under:
"Contempt of Court, but not including contempt of the Supreme Court."
This Entry clearly shows that both the Parliament and State Legislature are entitled to frame law regarding powers of the High Court in matters of contempt of Court. The Parliament and the State Legislature are entitled to frame law even to limit the powers of the High Court in matters of contempt of Courts. Thus Contempt of Courts Act, 1971 has been enacted by the Parliament within the framework of the Constitution. Preamble of this Act is:-
"An Act to define and limit the powers of certain Courts in punishing contempt of Courts and to regulate their procedure in relation thereto."
Further the introduction of the Contempt of Courts Act, 1971 in the statute-book has been for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country. It is a powerful weapon in the hands of the law courts by reason wherefor the exercise of jurisdiction must be with due care and caution and for larger interest.
As regards the burden and standard of proof, the common legal phraseology "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt.
As regards the "standard of proof", be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.
Lord Denning (In Bramblevale Ltd.) Re (1969) 3 All ER 1062) has held as under:
"A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence..... Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt."
Now reverting to the facts of the instant case in brief the same are that the applicant filed a Writ Petition No. 5623 (MB) of 2009 (Red Rose Senior Secondary School, Rajajipuram, Lucknow Vs. State of U.P. and others) and as per the averments made therein that the entire loan taken from the opposite party i.e. bank has been refunded by the applicant, now after payment of the entire loan, the opposite parties should not proceed to recover the dues.
After hearing the counsel for the parties the writ petition was disposed of vide order date 22.1.2010 with the following direction:
"Further submission of the counsel for the applicant is that since the transaction in question was a commercial transaction, the same could not have been recovered as arrears of land revenue. The counsel for the applicant invited attention of this Court towards the judgment reported in 2006 (24) LCD 1424, Iqbal Naseer Usmani Vs. Central Bank of India and others where their Lordship of Hon'ble Supreme Court held that Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 shall applicable only for the "State Sponsored Scheme" and not others. Learned counsel for the applicant has also invited attention of this Court towards the Full Bench judgment of this Court reported in 2001 (45) ALR 156, Smt. Sharda Devi Vs. State of U.P. through Collector, Varanasi & others where the same proposition of law has been pronounced as the Hon'ble Supreme Court in the case of Iqubal Naseer Usmani Vs. Central Bank of India (3) (supra) was pronounced.
In view of the above, we direct the Registrar, Cooperative Societies, U.P., Lucknow, the opposite party no.3 to look into the matter and take a decision with regard to present controversy regarding payment of recovery charges keeping in view the judgment relied upon the counsel for the applicant within a period of four months from the date of receipt of a certified copy of this order. The opposite parties-Bank is further directed to provide the statement of account to the applicant within three weeks from the date of production of a certified copy of this order."
As per the version of the applicant the order passed by the writ court has not been complied with so the present contempt petition has been filed. On 19.7.2010 notices were issued to the opposite party.
Thereafter the opposite party Sri Amar Kumar Verma, Registrar, Cooperative Societies U.P. Sahkarita Bhawan, Vidhan Sabha Marg, Lucknow who also hold the post of Principal Secretary, Cooperative Department, Government of U.P. filed a counter affidavit and in para 7 and 8 counter affidavit it is inter alia mentioned as under:
"7. That in compliance of the judgment and order dated 22.01.2010, the applicant which is a society running a school known as Red Rose Senior Secondary School submitted its representation before the Registrar Cooperative Societies U.P., on which the office of the Registrar Cooperative Societies U.P. has called the comments from the Secretary, Rajdhani Nagar Sahkari Bank Ltd. Lucknow as the matter was related with the Rajdhani Nagar Sahkari Bank Ltd Lucknow and the applicant was a borrower of the aforesaid Bank.
8. That considering upon the representation submitted by the applicant and comments received from the Rajdhani Nagar Sahkari Bank Ltd Lucknow, the deponent decided the representation submitted by the applicant by a reasoned and speaking order dated 11.8.2010. The copy of the order dated 11.8.2010 has also been sent to Mr. R.C. Mishra, Manager Red Rose Senior Secondary School, Rajajipuram, Lucknow, through registered post. A true copy of the order passed by the deponent on 11.8.2010 is being annexed herewith as Annexure No.A-1 to this affidavit of compliance."
In view of the above said facts Sri P.N. Dwivedi, the learned counsel for applicant, submits that the direction given by the writ court vide order dated 22.1.2010 to the concerned opposite party to look into the matter and take a decision with regard to the present controversy regarding payment of recovery charges keeping in view the (4) judgments relied upon by the counsel for the applicant within a specified period, as mentioned herein, were has not taken into consideration while rejecting the applicant's representations vide order dated 11th August, 2010.
He further submits that the concerned respondents should have considered the law as laid down in para 6 and 7 of the case of Naseeruddin Khan Vs. U.P. Financial Corporation & others 2009 (5) ALJ 143 while rejecting the representation of the applicant as per the order passed by the writ court which are as under:
"6. Thus, the purpose of recovery charges is to recover the amount which is incurred to execute the reference of recovery from the borrower or guarantor. In case nothing has been done by the revenue authorities and the amount is paid to the bank or the corporation then charging of recovery dues shall be unjust and improper. Moreover, in the present case the borrower entered into one time settlement with the respondent corporation. One time settlement is a form of an agreement entered into between the parties for payment of dues. The borrower or guarantor shall not be liable to pay any amount which has not been mentioned as a condition in one time settlement.
7. In view of settled proposition of law since the applicant has already paid the entire dues under one time settlement, there appears to be no good ground to levy the recovery charges. The recovery charges are levied by the revenue authorities to recover the dues through auction and sale of the property and to meet out such expenditure. In the present case, nothing has been done by the revenue authorities with regard to recovery of dues in question as the amount has already been paid under one time settlement."
He further submitted that the law as laid down by the Hon'ble Supreme Court in the case of Iqbal Naseer Usmani Vs. Central Bank of India and others 2006 (24) LCD 1424 should have also been taken into consideration while disposing of the applicant's representation vide the order dated 11th August, 2010 as the same has not been considered so the respondent has acted in utter disregard and disobedience to the order passed by the writ court liable to be punished.
Sri R. K. Chaudhary, the learned counsel for the respondent, on the basis of the said facts submits that the order passed by the Writ Court has been complied as on the basis of material documents/records vide order dated 11th August, 2010 his representation has been rejected.
In view of the above said facts and materials of the case, the admitted position which emerge out is that as per order dated 22.1.2010 passed by the Writ Court, (5) Registrar Cooperative Societies, Lucknow was directed to look into the matter and take a decision with regard to controversy regarding payment of recovery keeping in view the judgment relied upon by the counsel for the applicant within a specified period and the opposite party bank is also directed to quash the statement of the applicant.
Further in compliance of the said direction, the applicant submitted a representation before the Registrar Cooperative Societies and comments were called for from the Secretary, Rajdhani Bank Nagar Ltd., Lucknow, as the applicant/petitioner was a borrower of the said bank, thereafter taking into consideration the material on record vide order dated 11th August, 2010, the representation of the applicant has been decided and the copy of the same was sent to him.
Moreover in order to decide the representation, the applicant, as well as bank was called upon by the Registrar/Respondent; and 28.4.2010 fixed for give personal hearing. On the said date, the points were framed by the Registrar in order to decide the controversy in question and after hearing the parties decision was given by the said authority on each and every points, accordingly the representation of the applicant was rejected vide order dated 11 August, 2010.
In view of the above said facts once as per the direction given by the writ court vide order dated 22.1.2010 the representation of the applicant has been considered and decided by the competent authority/Registrar vide order dated 11th August, 2010 and same had been communicated to him. In that circumstances if the applicant is aggrieved by the decision taken by the said Registrar that the same is not in accordance with the direction given by the writ court then he has a remedy to challenge the same before the appropriate forum and for the said purpose the remedy to him does not lie under the provisions of the Contempt of Court Act. The said view taken by me is supported by the following decision of the Hon'ble Apex Court and this Court.
In the case of J.S. Parihar Vs. Ganpat Duggar and others AIR 1997 Supreme Court 113 the apex court has held as under:
"The question then is: whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr. S.K. Jain, learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation (6) of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the order of the Court as defined under Section 2(b) of the Act. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently promotions came to be made. The question is: whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the direction issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, afresh direction by the learned single judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act.
In the case of Lalit Mathur Vs. L. Maheswara Rao (2000) 10 SCC 285 the Hon'ble Supreme Court held as under:
"4. The High Court in the writ petition had issued a direction for the consideration of the respondent's representation by the State Government. This direction was carried out by the State Government which had considered and thereafter rejected the representation on merits. Instead of challenging that order in a fresh writ petition under Article 226, the respondent took recourse to contempt proceedings which did not lie as the order had already been complied with by the State Government which had considered the representation and rejected it on merits."
Further in the case of Ashok Kumar Pandey Vs. Ashok Kumar Singh, D.I.O.S., Ballia and others 2003 (5) AWC 4393 this court has held as under:
"Para 8." The D.I.O.S. considered the report and the matter of appointment of the applicant in great detail. He observed in the previous writ petition the applicant claimed his appointment under Section 18 of the U.P. Secondary Education Service Commission Act, 1982. However, in the second writ petition, he claimed his appointment under Removal of Difficulties II Order. Both these matters were considered and it was held that the appointment is not according to the rules either (7) under Section 18 of the U.P. Secondary Education Service Commission Act, 1982, or under Removal of Difficulties Order (Second). therefore, the appointment was disapproved.
"Para 9." It is further contended that previous approval in compliance of the order passed in the writ petition was passed by the Sub-Divisional Magistrate, who was holding the charge of D.I.O.S. without considering the provisions of the Act.
"Para 10." Therefore, the direction of this Court has been complied with. If the applicant is aggrieved by the order of the D.I.O.S. deciding the matter and is of the view that the decision is not correct, he may challenge the same in the appropriate writ or in other proper proceedings.
"Para 11." There is no ground to proceed with the contempt. The petition for contempt is accordingly dismissed."
In the case of Brahma Deo Tiwari Vs. Alok Tandon, District Magaistrate, Allahabad 2004 (1) AWC 543 this Court has held as under:
"As already noted hereinabove, this contempt petition has been filed alleging violation of the order of the writ court dated 10.12.1997 by which the writ court had directed to consider the case of the applicant with regard to his appointment. The contempt court after perusing the order dated 11.7.1997, though had disapproved the decision taken by the opposite party, had directed vide order dated 10.12.1997, to reconsider the case of the applicant after taking into consideration different aspect which are mentioned in the order itself. By the order dated 17.12.2002, the opposite party has considered all the aspects mentioned in the order dated 10.12.1997. Counsel for the applicant has urged that the order dated 17.12.2002 is neither legally nor factually correct. It may be so, but it is well settled that the contempt court can neither sit in appeal nor examine the correctness of a resultant order. The Apex Court in Lalith Mathur Vs. L. Maheshwara Rao, (2000) 10 SCC 285 and J.S. Parihar Vs. Ganpat Duggar, (1996) 6 SCC 29), has held that correctness of an order passed by a statutory authority on the directions of the writ court cannot be examined under the contempt jurisdiction. No doubt the resultant order may give rise to a fresh cause of action.
In the case of Shail Raj Kishore, Secretary, Education Basic, U.P. Lucknow and others 2004 (3) AWC 2444 this Court has held as under:
"Para 5 ........ If the applicants feel that the order passed by the opposite party is not in accordance to the intent or desire of the Court or otherwise illegal and arbitrary, the same can only be challenged before the appropriate forum. In various cases, Apex (8) Court has held that the Contempt Court cannot go into the merit of the order. Various grounds raised by the learned for the applicant to submit that the order is bad in law required consideration and adjudication, which can only be done by the appropriate Court and not by this Court."
In the case of Anil Kumar Shahi (2) Vs. Prof. Ram Sevak Yadav (2008) 14 Supreme Court Cases 115 the Apex Court has held that when the court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding of an authority to whom direction is given, therefore, mere error of judgment with regard to legal position does not constitute contempt of Court. There is no wilful disobedience if the best efforts are made to comply with the court order.
For the forgoing reasons, as in compliance of the order passed by writ court dated 22.1.2010 in writ petition no. 5623 (MB) of 2009 Registrar has taken on decision the representation of the applicant by order dated 11th August 2010, and communicated the same to the applicant, then there is no merit in the present contempt petition and it has to be dismissed.
Accordingly, the contempt petition is dismissed.
However, in case the applicant, if so advised, can challenge the order dated 11th August, 2010 passed by Registrar Cooperative Societies U.P before the appropriate forum.
No order as to cost.
Order Date :- 12 /01/2011 MTA